Protection of Plant Varieties and Farmers Right Act

A Critical Analysis

Project Assignment

PG Diploma in Patents Law

Submitted by

Dr R. Kalpana Sastry
I.D. No. Plh84_03
2003-04.

NALSAR Proximate Education

NALSAR University of Law, Hyderabad
http://www.nalsarpro.org

Contents

Topic

Page no

Acronyms

Chapter I

Introduction

Chapter II

Research Methodology

Chapter III

Intellectual Property Rights Regime

What is sui generis system?

Chapter IV

Parallel Treaties relating to PVP

International Union for the Protection of New Varieties of Plants

Convention on Biological Diversity and the Conference of the

Parties on Intellectual Property

Food and Agriculture Organization and International Treaty on

11

Plant Genetic Resources for Food and Agriculture

Chapter V

Chapter VI

The Protection and Plant varieties and Farmers Rights Act 2001
Background

13

Genesis

14

Objectives

14

Some Important Definitions

15

Salient Features of the Act

17

Conclusion

27

Bibliography

30

Acronyms
CGFRA

Commission on Genetic Resources for Food and Agriculture

CGIAR

Consultative Group on International Agricultural Research

CBD

Convention on Biological Diversity

CPGR

Commission on Plant Genetic Resources

DUS

Distinct, Uniform Stability

EDVs

Essentially Derived Varieties

FAO

Food and Agriculture Organization

GATT

General Agreement on Trade and Tariffs

GMO

Genetically Modified Organisms

GOI

Government of India

IPGRT

International Plant Genetic Resources Treaty

IP

Intellectual Property

IPR

Intellectual Property Rights

ICAR

Indian Council of Agricultural Research

IUPGR

International Undertaking on Plant Genetic Resources

IU

International Undertaking on Plant Genetic Resources

JPC

Joint Parliament Committee

MTA

Material Transfer Agreement

NGOs

Non Government Organizations

PBR

Plant Breeders Rights

PIC

Prior Informed Consent

PIL

Public Interest Litigation

PPVFR

Protection of Plant Varieties and Farmers Rights

PGRFA

Plant Genetic Resources for Food and Agriculture

PVP

Plant Variety Protection

RCV

Reference Collection of Varieties

TRIPS

Trade Related Intellectual Property Rights

UPOV

Union Internationale pour la protection des obletrious vigetales

UR

Uruguay Round

WTO

World Trade Organization

ii

Protection of Plant Varieties and Farmers Right Act-A Critical Analysis

Chapter I
Introduction
One of the major impacts of General Agreement of Trade and Tariffs (GATT)
after 1995 has been the need to harmonize National Laws dealing with Intellectual
Property Rights. Knowledge is now being used as an economic tool in trading. In such
an atmosphere where agriculture is also a trade issue, protection of plant varieties by
legal enactments, becomes a necessity and mandatory. However, in an agrarian
economy like in the Indian context, enactment of laws in compliance with the standards
set by WTO is becoming increasingly complex especially when consideration of the
stake holders and food security concerns have to be taken. Global IPR regime as with
international law is in a state of continuous evolution. Institutions, fora and several
processes at international, regional and national levels influence this continual
development.
The recent enactment of Government of India on Protection of Plant Varieties
and Farmers Right Act (PPVFR Act) is a result of intense discussion across the country
on different platforms. The Act emerged from a process that attempted to incorporate the
interests of various stakeholders including private sector breeders, public sector
institutions, NGOs and farmers within property rights framework. The present paper
deals with the need of this Act, the background scenario, other parallel treaties at
international level and the final embodifying legislation.

Inspite of the intense

discussions prior to the enactment, several fears are still being voiced in many quarters
This paper attempts to point out some of the concerns and provide suggestions for
overcoming them.

Chapter II

Research Methodology

This assignment is a critical analysis of PPVFR Act. It is aimed at providing the

perspective on the need for such a unique act and the rights provided for the
beneficiaries.
method.

The research methodology adopted is of a descriptive analytical

The data has been collected from primary and secondary sources, which

include Internet sources bulletin, books, research publications, the Act itself and data
collected from personal interviews with the plant breeders and progressive farmers.
Knowledge gained by participation in several seminars, meetings, listening to academic
talks in several platforms involving policy makers, lawyers, scientists and NGOs has also
been used while analyzing. The paper includes introduction, and the need for sui generis
system for India.
Parallel methods of plant variety protection in the UPOV, the Agenda of
International Plant Genetic Resources Treaty, and Convention on Biodiversity have been
reviewed. Against this backdrop the Act has been put forth along with objectives, its
genesis, definition of crucial terms as recognized by the Act and detailed discussion and
critical analysis of the various sections.

Chapter III
Intellectual Property Rights Regime

The General Agreement on Trade and Tariffs (GATT), the predecessor to the
World Trade Organization (WTO) 1, was started to restore world trade after the end of
the Second World War in 1945. Several rounds in GATT starting from 1948, dealt with
the quotas and duties of tradable commodities between nations. The 1986 GATT Round,
popularly known as Uruguay Round (UR), brought in new elements into trade
discussions, specially relating to agriculture. One of the most conscientious agreements
of the UR is the one relating to granting of Intellectual Property Rights (IPR) on biological
materials embodied in the Trade-related intellectual Property (TRIPS)

chapter. This is

administered by the World Trade Organization and is important because it is the first and
only international treaty, which seeks to establish enforceable universal minimum
standards of protection for all major intellectual property rights. It specifically requires
that Intellectual Property Rights (IPR) are protected by law in different forms industrial
property rights, such as patents, designs or trade marks, copyright and related rights,
and other forms, such as geographical indications or undisclosed information (trade
secrets). The TRIPS agreement recognizes the creation of Intellectual Property Rights
(IP) as essential for the development of mankind. IP is the property created by the
human intellect, which can be incorporated in tangible objects and reproducible in
different locations.
Thus, IP confers legal ownership to the person or a business of a discovery or
an invention attached to a particular product or process, which prohibits others from
unauthorized use. While this agreement had specified minimum standards with
reference to Berne and Paris conventions it notably made no such specifications on any
1

Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C,LEGAL

INSTRUMENTS-RESULTS OF THE URAGUAY ROUND vol. 1, 33 I.L.M 181 (1994)

2

Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994,

Marrakesh

Agreement Establishing

the World Trade

Organisation,

Annex

1C,LEGAL

INSTRUMENTS-RESULTS OF THE URAGUAY ROUND vol. 1, 33 I.L.M 181 (1994)

minimum standards for plant varieties. Article 273 of the TRIPs Agreement states that all
qualifying inventions in all fields of technology, whether products or processes, shall be
eligible for patents. Further countries may decide, as per this Agreement, not to patent
within their territories plants and animals, and essentially biological processes for their
production.

Nevertheless, they will be obliged to patent microorganims, and non-

biological as well as microbiological processes. Also, where patent shall not be provided
for plants, it will be obligatory as per the TRIPs Article 27.3 (b)4 to provide for the
protection of plant varieties by a patent or by an effective sui generis system or by
combination thereof.
Thus, with respect to the protection of plant varieties, TRIPS is very clear that
plants and animals may be excluded from patentability. The choice is left to member
countries to protect plant varieties either by patent or by an effective sui generis system
or by combination of both these IPR systems.
What is sui generis?
Sui generis

is Latin word meaning unique or special leaving the sui generis

system open to interpretation. Sui generis offers a unique type of IPR, which is different
from the classical IPR like patents. All sui generis models for PVP that are tailored to the
specific needs and circumstances of the countries are legally recognized systems. Plant
varieties constitute the principal means of production and growth in agricultural
productivity. It is also recognized that the specific needs and circumstances of
agriculture in each country vary. This is especially significantly different in developed and
developing countries. Therefore it is obvious that PVP in each country needs a specific
sui generis system.
3

TRIPS Agreement art 27, sec 5, states that patents shall be available for any

inventions, whether product or process, in all fields of technology provided that they are new,
involve an inventive step, and are capable of industrial application.
4

TRIPS Agreement art 27.3 (b), states that Members may exclude from patentability

plants and animals other than microorganisms, and essentially biological processes for
production of plants and animals other than non-biological processes. However, it obliges
member countries to provide for the protection of plant varieties either by patents or by an
effective sui generis system or by any combination thereof.
5

Latin for unique or of its own kind

Chapter IV
Parallel International Treaties relating to PVP

The Protection and Plant Varieties and Farmers Rights Act, 2001(PPVFR Act) of
India has been enacted after consideration of several international systems. Useful
features from many international treaties have also been borrowed or modified in the
Act. A brief resume of some of the features of such parallel agreements considered by
the makers of the Indian Act is presented below.
International Union for the Protection of New Varieties of Plants
It was during the early part of the twentieth century that the potential benefit of
systematic plant breeding to society and the lack of an effective protection and reward
system was first felt which led to the formation of the Inter -governmental International
Union for the Protection of New Varieties of Plants, commonly known as UPOV(based
on its initials in French - Union Internationale pour la protection des oblentions vigetales)
with mostly developed countries as member states, after an International convention in
Paris in 1961. The convention has undergone revisions in 1972, 1978 and 1991 and
has as on today 53-member states6. The purpose of the UPOV convention is to ensure
Plant Breeders Right (PBR) by making available to them an exclusive property right on
New Plant Varieties in order to provide incentive to the development of agriculture and to
safeguard the interests of plant breeders. It provides a framework for intellectual
property protection of plant varieties. To be eligible for protection, varieties have to be (i)
distinct from existing commonly known varieties (ii) sufficiently uniform i.e. remain true to
description after repeated reproduction (iii) stable and new in the sense that they must
not have been commercialized. These characteristics are often referred as DUS
characters.
Under the UPOV78, a new plant variety produced by a breeder could only be
produced and marketed by him. The plant breeder right (PBR) gives to the breeder, a
monopoly via marketing right sale of seed. (Article 14). But the system allowed two
important exemptions.

One, the breeders exemption, which allowed other plant

breeders to use the protected variety for breeding purposes and the other one was that
of the farmers rights. The farmers were allowed to use the seeds from their harvest to
plant the next crop, even if the seed was protected by the PBR.
6

UPOV has 38 member states of which 29 are parties to 1978 Act and 8 are parties to the 1991
Act; See http://www.upov.int/en/about/members/index.htm

The breeders exemption was almost done away with in the UPOV91 making
way for royalty payments to the PBR holder from the breeders if their new variety bears
some resemblance to the protected variety even if the new variety has been bred for
different characters.

Besides, farmers cannot use farm-saved seeds from protected

varieties, without paying compensation.

The methods of compensation are being

currently discussed in various fora in Europe and the issue is a bone of contention
between farmers and breeders. (Article 15). 7
According to both versions of the UPOV convention, the breeders right may be
subject to two exceptions: the breeders exemption and the farmers privileges.
These exceptions are analyzed below.
The right of breeders both to use protected varieties as an initial source of
variation for the creation of new varieties and to market these varieties without
authorization from the original breeder (the breeders exemption) is upheld in both the
1978 and 1991 versions. One difference is that the 1991 version states that the original
breeders right extends also to varieties, which are essentially derived from the protected
one. The idea here is that breeders should not be able to acquire protection too easily
for minor modifications of extant varieties. This provision is also intended to ensure that
patent rights and PBRs operate in a harmonious fashion.
There is no reference in the 1978 version to the right of farmers to re-sow seed
harvested from protected varieties for their own use (often referred to as farmers
privilege). Thus, countries that are members of the 1978 Convention are free, but not
obliged, to uphold the farmers privilege.

In this respect, the 1991 version is more

specific.
Whereas the scope of the breeders right includes production or reproduction,
governments can use their discretion in deciding whether to uphold the farmers
privilege.

Article 15 provides for an optional exception that allows parties within

reasonable limits and subject to the safeguarding of the legitimate interests of the
breeder, [to] restrict the breeders right in relation to any variety in order to permit
farmers to use for propagating purposes, on their own holdings, the product of the
harvest which they have obtained by planting, on their own holdings, the protected
variety or an essentially derived variety 7.
7

ACT of 1991 International Convention for the protection of new varieties of plants (of

Dec.2,1961;as revised at Geneva on Nov.10,1972,on Oct.23,1978 and March 19,1991 .

In effect, this means that parties to UPOV 1991 can continue to uphold the farmers
privilege as long as their national PBR system provides for it.

If the national PBR

legislation of UPOV 1991 parties is silent about farmers privilege, this presumably
means there is no such privilege and that farmers cannot re-sow harvested seed even
on their own farms. A comparison of provisions of the two vis-a-vis provisions in TRIPS
is tabulated in table 1.
Table 1: Comparison of provisions in UPOV 78,UPOV 91 and TRIPS
Provision

UPOV 1978 Act

UPOV 1991 Act

Patent Law

Protection coverage

As many plant genera

and species as
possible. Minimum of 5
on joining and of 24
after 8 years

Minimum of 5 on
joining. 10 years later,
must protect all plant
genera and species

Inventions

Requirement

Novelty (variety must

not have been
commercialized)

Novelty (variety must

not have been
commercialized)

Novelty (Invention
must not have been
published)

Distinctness

Distinctness

Non-obviousness

Sufficient Uniformity
having regard to the
particular features of
varietys propagation
Stability

Sufficient Uniformity
having regard to the
particular features of
varietys propagation
Stability

(inventiveness)
Industrial
applicability
(usefulness)

Protection term

Protection scope

Minimum 15 years (18

years for trees and
vines)

Minimum 20 years (25

years for trees and
vines)

Minimum 20 years

Production for
commercial purposes
and offering for sale
and marketing of
propagating material of
the variety

Commercial
transactions with
propagating material.
Harvested material
protected only if
produced from
propagating material
without breeders
permission and if
breeder had no
reasonable chance to
exploit his right over it.

Making, using,
selling patented
product; using
patented process

(TRIPS)

Breeders
exemption

Yes

Yes. Essentially
derived varieties can
only be marketed with
the agreement of the
breeder

No

Farmers privilege

Minimum scope of
protection allows a
farmers privilege

Each member State

can define a farmers
privilege suitable for its
conditions

No

Prohibition of
double protection

Any species eligible for

PBR protection cannot
be patented

The Act is silent on

this question;
countries may choose
to exclude plant
varieties from patent
protection

Many countries
exclude plant
varieties as such,
from patent
protection

Source: Original table van Wijk et al, p 8, updated by UPOV Secretariat; As cited in: Making
Indian Agriculture more knowledge intensive and Competitive: The Case Of Intellectual Property
Rights At: http://www.sristi.org/papers/C1.htm

The Convention on Biological Diversity and the Conference of the Parties and Intellectual Property
The CBD, which entered into force in 19938, has three objectives, the
conservation of biological diversity, and the sustainable use of its components and the
fair and equitable sharing of the benefits arising out of the utilization of genetic
resources. Intellectual property rights, and particularly patents, are considered to be
most relevant to the third of these objectives, that of fair and equitable benefit sharing.
The TRIPs Agreement, concluded after the entry into force of the CBD, does not require
the establishment of any mechanisms to ensure fair and equitable benefit sharing with
States and the holders of traditional knowledge.
The most important parts of the Convention here are Articles 15 and 8 (j). Article
15(Access to genetic resources) recognizes the sovereign rights of States over their
natural resources, and their authority to determine access to genetic resources, and that
access, where granted, shall be on mutually agreed terms and subject to prior informed
consent of the provider party. Article 8 (j) requires parties to respect, preserve and
maintain knowledge, innovations and practices of indigenous and local communities
8

175 countries have ratified the proposal at RIO Earth Summit of 1992 as on 15 January 1999

(including the European Community) by the end of 1993

embodying traditional life-styles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage
the equitable sharing of the benefits arising from the utilization of such knowledge,
innovations and practices.
Since there is no reference in the TRIPs Agreement to the CBD requirement of
prior informed consent (PIC) or encouragement of benefit sharing, developed countries
that provide for the patenting of genetic resources usually grant such patents without
examining the origin of the genetic material, the existence of prior informed consent on
the part of indigenous communities, or whether the patentee is committed to sharing the
commercial benefits with the provider of the genetic material. In addition, IPRs may
inhibit, due to their exclusiveness, appropriate access to genetic resources, which is
one of the CBDs objectives.9 Therefore, the question of how to interpret the relationship
between the TRIPs Agreement and the CBD has been the source of considerable
controversy in the TRIPs Council.
In the CBD, intellectual property is explicitly referred to only in the context of
technology transfer, which is supposed to be one of the main kinds of benefit for provider
countries to receive10.

Article 16 on access to and transfer of technology requires

Parties to the Convention to undertake to provide and / or facilitate access and transfer
of technologies to other parties under fair and most favourable terms.

The only

technology specifically referred to is biotechnology, but Article 16 is concerned with any

technologies that are relevant to the conservation and sustainable use of biological
diversity or make use of genetic resources and do not cause significant damage to the
environment. Recognizing that technologies are sometimes subject to patents and other
IPRs, access to such technologies must be on terms which recognize and are
consistent with the adequate and effective protection of intellectual property rights.
Clearly this is nothing for the life science industries to feel too concerned about. Indeed,
the clause beginning adequate and effective protection was specifically added to
establish a link with the draft TRIPs Agreement, which also used this language, as did
the final version.
Article 16.5 is a little more controversial, requiring the Parties to cooperate to
9

refer article 1 of CBD; Sourced from http://www.biodiv.org/convention/articles.asp

Ibid

10

ensure that patents and other IPRs are supportive of and do not run counter to the
CBDs objectives.

This reflects the profound disagreement during the negotiations

between those who believed that IPRs conflict with the CBDs objectives and others that
saw no contradiction.
To review implementation of the CBD, the Conference of the Parties (composed
of all contracting parties) meets periodically (usually biannually).

IPRs are most

frequently discussed in deliberations on such topics as access to genetic resources,

benefit sharing, and the knowledge innovations and practices of indigenous and local
communities, and not so much with regard to transfer of technology. At the Sixth
Meeting of the Conference of the Parties11, which took place in The Hague in May 2002,
the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable sharing of
the Benefits Arising out of their Utilization were officially adopted. The guidelines, which
are used when developing and drafting legislative, administrative or policy measures on
access and benefit sharing (ABS) and contracts, have a number of provisions relating to
IPRs. They suggest to Parties with genetic resource users under their jurisdiction to
consider adopting measures to encourage the disclosure of the country of origin of the
genetic resources and of the origin of traditional knowledge, innovations and practices of
indigenous and local communities in applications for intellectual property rights. As a
means of implementing the CBD provision that benefit sharing be upon mutually agreed
terms, two elements to be considered as guiding parameters in contracts and as basic
requirements for mutually agreed terms are that provision for the use of intellectual
property rights include joint research, obligation to implement rights on inventions
obtained and to provide licenses by common content, and the possibility of joint
ownership of intellectual property rights according to the degree of contribution.12

11

Convention on Biodiversity 2002 Conference of parties to convention on biodiversity

UNEP/CBD/COP/6/20 dated 27 May,2002 72 pages http://www.biodiv.org/doc/meetings/cop/cop06/official/cop-06-20-part1-en.pdf

12

COP Decision VI/ 24 Available at: http://www.biodiv.org/decisions/

10

The Food and Agriculture Organization (FAO) and the International Treaty on Plant Genetic
Resources for Food and Agriculture
During the 1980s the FAO became the principle battleground of what came to be
known as the seed wars13. The main bone of contention was that the developed
countries were allegedly abusing the free exchange principle. The main criticisms were,
first, that most of the world base-crop collections were held in the developed world even
though most of the accessions had come from the developing world. Second, while folk
varieties were treated as being the common heritage of humankind, plant breeders in the
developed countries were securing IPR protection for their own varieties.
In 1983, the FAO Commission on Plant Genetic Resources (CPGR) was created
to provide a forum where governments could meet for discussion, and monitor the nonbinding agreement known as the International Undertaking on Plant Genetic
Resources(the Undertaking), whose objectives were to ensure the safe conservation
and promote the unrestricted availability and sustainable utilization of plant genetic
resources for present and future generations, by providing a flexible framework for
sharing the benefits and burdens. Its basic premise is that genetic resources are the
heritage of the mankind and should be freely exchanged between nations. In 1993, the
CPGR (Resolution 93/ 1) called for the Undertaking to be revised in harmony with the
CBD. To this end, the Commission, now called the Commission on Genetic Resources
for Food and Agriculture (CGRFA), held a series of negotiations to revise the
International Undertaking (IU).

Protracted discussions progressed, albeit slowly, at

several extraordinary sessions of the CGRFA, and at a series of contact group meetings
convened by the Chair of the CGRFA. These negotiations were finally concluded in
November 2001, when a text for the revised undertaking was adopted and then
converted into a legally binding treaty. The treaty was finalized in November 2001 and
will come into effect after the 40th

signatory country has ratified it. So far 31 countries,

including India have committed to the treaty. The protection of plant varieties and
farmers rights act of India includes within it all the major provisions of this treaty14.
13

Refer: UNCTAD-ICTSP Project no INT/OT/IBH on IPRs and Sustainable Development Policy

http://www.ictsd.org/pubs/ictsd_series/iprs/PP/PP_3CH_02.pdf
14

As per Article 28,Treaty enters into force 90 days after deposit of the fortieth instrument of

ratification, acceptance, approval or accession. http://www.fao.org/legal/TREATIES/033s-e.htm

11

The treaty seeks to protect the material in the gene banks and the crops in the
farmers fields from being directly patented and encourages countries to protect farmers
rights. Under this treaty the FAO and the 11 CGIAR centres will hold genetic resources
under trust. National rights, plant breeders rights and farmers rights over genetic
resources are recognized. IP provisions are implemented through Material Transfer
Agreements (MTAs) and the recipients of germplasm must agree not to seek ownership
or claim any rights over it or related information. Listed genetic material will be freely
exchanged among nations that are contracting parties without the requirement of a MTA.
In response to the developed countries insistence on excluding IPR protected
plant varieties from application of the common heritage principle, the Farmers Rights
concept was included in the Undertaking from 198915. In this context, it should be noted
that the term Farmers Rights has to be distinguished from farmers privilege. The
latter is a clearly defined (cf.Art.15 (2) UPOV 1991) exception to the breeders exclusive
right, Farmers Rights is not an IPR as such, but it is frequently suggested as a
principle that could be implemented as a compensation of benefit-sharing mechanism.
Officially Farmers Rights is an attempt to acknowledge, the contribution farmers have
made to the conservation and development of plant genetic resources, which constitute
the basis of plant production throughout the world.16

15

CPGR Resolution 5/89 defines farmers rights Available at http://www.fao.org/ag/cgrfa/IU.htm

16

Refer Halewood, M. Indigenous and local knowledge in International Law: a preface to sui

generis intellectual property protection. McGill Law Journal 44:953-996, 1999.

12

Chapter V
The Protection and Plant Varieties and Farmers Rights Act 2001

The existing Indian Patent Act, 1970 excluded agriculture and horticultural
methods of production from patentability.

In order to be compliant with the TRIPS

agreement, the Government of India has adopted the sui generis system for protection
of plant varieties. This was developed with an intention of integrating the rights of
breeders, farmers and village communities, and taking care of the concerns for equitable
sharing of benefits. The national government after much deliberation with all enacted this
unique legislation. This is the first time anywhere in the world the rights of farmers and
breeders are given concurrent recognition. (M.S.Swaminathan, 2001)17. A number of
provisions and concepts contained in the TRIPS, UPOV, the IU and CBD constitute key
elements in this legislation. As touchstones of the Indian Act, these elements connect
global agreements and national law making process. Thus sui generis option to
construct legislation from TRIPs helped to establish PBR based on UPOV model,
concept of farmers rights from IU and benefit sharing from CBD. The Act does not
import the concepts per se but translates these through drafting and assembling, and
configures it to be a unique legislation. The Act ensures that the farmers shall be able to
raise their own seeds and retain them even to distribute in exchange, among the village
community as per the existing tradition. The researchers shall be able to produce new
varieties from the protected varieties. The Act also includes for setting up of a Plant
Varieties and Farmers Rights Protection Authority, National Community Gene Fund,
Compulsory Licensing and Protection of Public Interest Appellate Board among others. .
It offers flexibility with regard to protected genera / species, level and period of
protection, when compared to other similar legislations existing or being formulated in
different countries. The Act covers all categories of plants, except micro-organisms.
The genera and species of the varieties for protection shall be notified through a gazette,
after the appropriate rules and by-laws are framed for the enforcement of the Act.

17

Swaminathan.M.S.2001 September 15,2001 Down to Earth Pages 48 to 50

13

Genesis
The process of drafting the PPVFR took more than 10 years. Starting in late
1980s, the first draft was produced by 1993 by Ministry of Agriculture, nodal Ministry
throughout the development of the Bill. Three drafts followed in 1997,1999 and
2000,although the last two were introduced in the Parliament. Based on the UPOV
model, the penultimate draft was introduced in Lok Sabha on December 12, 1999, and
later referred to 30-member Joint Parliamentary Committee (JPC) of both the Houses
under the Chairmanship of Sri Sahib Singh Verma, for redrafting the Bill. This was due to
inadequate provisions to protect the interests of the farmers, registration of extinct
varieties and tribunals for speedy settlement of disputes etc. The JPC redrafted the Bill,
thus incorporating a chapter on farmers rights, as per the IU, which is a unique feature.
The original Bill authorized only the High Court to hear appeal against order of decisions
of the authority or register. The new Bill recommended constitution of a Tribunal for the
purpose. (GOI, 2001). 18 It also incorporated changes in the provisions for plant varieties
and farmers rights authority, registration of plant varieties, benefit sharing and
infringement etc. Both the Houses of the Parliament have passed the PPVFR Bill in
August 2001 after a long and arduous struggle for the recognition of the rights of the
farmers. 19
Objectives
The objectives of the Act are as follows:

i.

To provide for the establishment of an effective system for protection of plant

varieties

ii.

To provide for the rights of farmers and plant breeders.

iii.

To stimulate investment for research and development and to facilitate growth

of the seed industry.

iv.

To ensure availability of high quality seeds and planting materials of improved

varieties to farmers

18

Government of India 2001.The Protection of plant varieties and Farmers Rights Act 2001.Act
No.52 of 2001 New Delhi: Akalank Publications.
19
Seshia,S. 2002. Plant variety protection and farmers rights: Law-Making and the cultivation of
varietal control. Economic and Political Weekly, July 6,2002

14

The printed version of the Act is published in the Newsletter of Seed Association
of India20. The Act has 11 chapters and is divided in 97 clauses. The first chapter has
title, and the definitions used in context of the Act.

The last chapter is on

miscellaneous clauses The other nine chapters deal with PPVER authority,
registration of plant varieties, duration and effect of registration and benefit sharing,
surrender and revocation of certificate, farmers rights, compulsory license, plant
varieties protection appellate tribunal, finance, accounts, audit, infringement, offences
and penalties, etc
Some Important definitions
Some of the important definitions in the context of the Act are placed below along
with some of the concerns raised while interpretation of these definitions.
Variety

A plant grouping except microorganisms within a single botanical taxon of the lowest
known rank, which can be
(i)

defined by the expression of the characteristics resulting from a given

genotype of a plant grouping;

(ii)

distinguished from any other plant grouping by expression of at least one

of the said characteristics; and

(iii)

considered as a unit with regard to its suitability for being propagated,

which remains unchanged after such propagation and includes
propagating material of such variety, extant variety, transgenic variety,
farmers variety and essentially derived variety.

Extant variety

A variety available in India, which is

20

(i)

notified under section 5 of Seeds Act, 1966, or

(ii)

farmers variety, or

(iii)

a variety about which there is common knowledge, or

(iv)

any other variety which is in public domain.

The Protection of Plant Varieties and Farmers Rights Bill 2001.Seed Association of India
Newsletter.2001 Vol.15.pp1-35

15

Essentially derived variety

A variety shall be said to be essentially derived when it :

(i)

is predominantly derived from such initial variety, or from a variety that

itself is predominantly derived from such initial variety, while retaining the
expression of the essential characteristics that result from the genotype or
combination of genotypes of such initial variety ;

(ii)

is clearly distinguishable from such initial variety, and

(iii)

conforms (excepting for the differences which result from the act of
derivation) to such initial variety in the expression of the essential
characteristics that result from the genotype or combination of genotypes
of such initial variety.

Farmer

Any person to
a. cultivates crops by cultivating the land himself, or
b. cultivates crops by directly supervising the cultivation of land through any
other person, or
a. conserves and preserves, severally or jointly, with any person any wild
species or traditional varieties, or adds value to such wild species or
traditional varieties through selection and identification of their useful
properties.
Farmers variety

A variety which
(i)

has been traditionally cultivated and evolved by the farmers in their fields, or

(ii)

is a wild relative or land race of a variety about which the farmers possess
common knowledge.

Concerns: The protection of new varieties is based on the UPOV model, which several
institutions (private, public or universities) can use to their advantage. The concept of
EDV has been taken from UPOV, 1991 with a slight modification. This can be used to
protect modified varieties or to initial varieties used in breeding programs. This can be
used by NGOs too if they are embarking on breeding programs. However it is the extant
varieties and farmers varieties, which may need some intervention. Protection of extant
variety is indeed a new feature not found anywhere in the world. But specifications for
extant varieties on DUS criteria need to be made. While several public institutions can

16

register, it remains to be seen how many farmers can use this feature. Confusion on
criteria for registering farmers varieties exists and whether DUS is required for these
varieties persists. The PPVFR Authority needs to clarify this. A farmer who has bred or
developed a new variety shall be entitled for registration and any other protection as a
breeder. Since the definition of an extant variety according to section 2 (j) includes a
farmers variety also, which may be landrace or a wild relative about which farmers
possess common knowledge, the uniformity criteria in case of registration of these
varieties is difficult to ascertain. Such consideration may have to be included in the DUS
guidelines for testing of these particular types of varieties.

Further, there could be

innumerable farmers varieties (landraces for registration and their data are scattered
and sometimes overlapping). A technical questionnaire to bring out unique characters
and area of adaptability could be developed initially to document these varieties. The
time-frame to be provided for documentation of information relevant for registration of
extant varieties (farmers varieties or released varieties) under Section 15 (2) may be
restricted to three years.
Salient features of the Act
Some of the features embodified in the Act (Table 2) are placed for discussion.
Concerns, which impede its implementation, have also been raised. These are put forth
with an intention that initial bottlenecks of implementing of this unique Act should not
hamper policy makers, scientists, legal authorites, NGOs and farmers from pursuing its
ideals and concerted efforts are made to set the process in motion.
Table 2 Salient features of the Indian sui generis PVP Act
The PPV & FR Act, 2001
provides an optimum balance between :
Breeders right and farmers right
IPR and right on genetic resources
used to develop a variety, where
applicable
provides protection to
New varieties
Extant varieties, including farmers
varieties, and the varieties of common
knowledge
Essentially derived varieties

Does not provide protection to

Plant variety that carries genetic use
restriction
technology
(GURT),
terminator gene

Examination procedure based on

Novelty, in commercial sense
DUS testing
Distinct nomenclature

Examination procedure for farmer varieties

Novelty not essential for extant / farmer
varieties or varieties of common

17

Benefit sharing from a commercialized

protected variety
Any citizen / group of citizens of India /
governmental organizations / NGO /
firm formed or established in India shall
have the right to make such a claim
National Authority to assess and
determine claim
Compensation may be in any form
material or non-material
Compulsory license provided for when
Breeder / institution / licensee causes
its non-supply or short supply of
planting material of the variety
Charges prohibitively high prices for
such planting material

knowledge
Procedure for the farmers varieties
possibly less rigorous
Distinct nomenclature is equally
important
National Gene Fund
To credit inter alia benefit shared under
the Act
To
use
the
fund
supporting
conservation at local community level
To use the fund for facilitating
sustainable use of genetic resources

Plant Variety Tribunal

To expedite disposal of related legal
disputes

Source: Sudhir Kochhar, Intellectual Property protection in plant varieties. Invention Intelligence.
Nov.-Dec. 2003. 254 to 267 pages

Authority
The Central Government shall establish an Authority to be known as the Protection of
Plant Varieties and Farmers Rights Authority. It shall consist of a chairperson and
fifteen members as representatives of different concerned ministries and departments,
seed industry, farmers organizations, tribal communities and state-level womens
organization, etc.
Concerns: Creating new bureaucratic organization to regulate rights in areas that were
in public domain for long and also in tandem with new boards (like the proposed Biodiversity boards) may lead to new, legal delays. As a first step towards implementation
of the Act, the Government shall have to notify the crops in order to establish the system
of listing of plant varieties for the purpose of registration. The criteria for selecting the
crops could be the crops on which we are dependent for food and nutritional security,
including major cereals, pulses, oilseeds, and vegetables and fruits crops. Thus a clear
policy on access to germplasm in certain crops especially which affect livelihoods
concerns need to be defined urgently. Crop species important for India in the world
trade, species of Indian origin, crops where India could benefit from introduction of new
germplasm and foreign investment, could be the other priorities for consideration.

18

Eligibility
For a variety to be eligible for registration it must conform to the criteria of novelty,
distinctiveness, uniformity and stability (NDUS), as described below (Section 15 (1)- (3).
For the purposes of the Act, a new variety shall be deemed to be :
(a) Novel, if, at the date of filing of the application for registration for protection, the
propagating or harvested material of such a variety has not been sold or
otherwise disposed of by or with the consent of its breeder or his successor for
the purposes of exploitation or such variety
(i)

in India, earlier than one year,

(ii)

or outside India, in the case of trees or vines earlier than six years, or,
in any other case, earlier than four years, before the date of filing such
applications.

Provided that a trial of a new variety that has not been sold or otherwise disposed off
shall not affect the right to protection.
Provided further that the fact that on the date of filing the application for registration, the
propagating or harvested material of such variety has become a matter of common
knowledge, other than through the aforesaid manner shall not affect the criteria of
novelty for such variety.
(a) Distinct, if it is clearly distinguishable by at least one essential characteristic
form any other variety whose existence is a matter of common knowledge in
any country at the time of filing of the application.
(b) Uniform, if subject to the variation that may be expected from the particular
features of its propagation, it is sufficiently uniform in its essential
characteristics.
(c) Stable, if its essential characteristics remain unchanged after repeated
propagation or, in the case of a particular cycle of propagation, at the end of
each such cycle.
The variety will be subjected to such distinctiveness, uniformity and stability tests as
shall be prescribed.
Application form
Every application for registration will have to be accompanied with the following
information (Section 18 (a-h);
(a)

denomination assigned to such variety by the applicant;

19

(b)

an affidavit sworn by the by the applicant that such variety does not

contain any gene or gene sequence involving terminator technology.

(c)

the application should be in such form as may be specified by regulations;

(d)

a complete passport data of the parental lines from which the variety has

been derived along with the geographical location in India from where the genetic
material has been taken and all such information relating to the contribution, if
any, of any farmer, village community, institution or organization in breeding,
evolving or developing the variety;
(e)

a statement containing a brief description of the variety, bringing out its

characteristics of novelty, distinctiveness, uniformity and stability as required for

registration;
(f)

such fees as may be prescribed;

(g)

contain a declaration that the genetic material or parental material

acquired for breeding, evolving or developing the variety has been lawfully
acquired; and
(h)

such other particulars as may be prescribed.

The conditions stated above (a-h), shall not apply in respect of application for
registration of farmers varieties.
Concerns: It would be meaningful if the specified period (15(2)) and ownership issues
of extant varieties are clarified. DUS criteria for all crops (open or self) need to be
characterized. The position on varietal names already existing, which have used
geographical locations (now not allowed by the Act) needs to be verified. Pusa Ruby,
Pusa basmati are names already registered for varieties. What would be new strategy
for these? Defining the amount of Passport data, information on hybrids parental lines
are yet other gray areas, which may be areas for litigations. The Authority may also have
to decide about the minimum passport data required to be submitted with the
application. Many germplasm accessions used for the development of new varieties,
even when accessed from gene banks / breeders collection may not have full recorded
passport data. In such a case, acknowledging the source of parental material may be
considered sufficient. Further, information regarding parental lines as required under
section 19 (e), needs to be restricted to immediate parents. The term parental line is
ambiguous here since all the varieties developed by traditional methods may be having

20

many parental lines.

It could be appropriate to include information on immediate

parents, specifically in case of hybrids only.

Period of protection
The certificate of registration issued under section 24 or sub-section 98 of section 23
shall be valid for nine years in the case of trees and vines and six years in the case of
other crops, and may be reviewed and renewed for the remaining period on payment of
such fees as may be fixed by the rules made on this behalf subject to the conditions that
the total period of validity shall not exceed.
(i)

in the case of trees and vines, eighteen years from the date of registration
of the variety;

(ii)

in the case of extant varieties, fifteen years from the date of the
notification of that variety by the Central Government under Section 5 of
the Seed Act, 1996, and

(iii)

in the other case, fifteen years from the date of registration of the variety.

Payment of annual fee

The Authority may, with the prior approval of the Central Government, by
notification in the Official Gazette, impose a fee to be paid annually, by every breeder or
a variety, agent and licensee thereof registered under this Act determined on the basis
of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in
respect of the variety, for the retention of their registration under this Act [(Section 35
(1)].
Breeders rights
The certificate or registration for a variety issued under this Act shall confer an exclusive
right on the breeder or his successor or his agent or licensee, to produce, sell, market,
distribute, import or export of the variety [Section 28 (1)].
Researchers right
The researchers have been provided access to protected varieties for bona fide
research purposes [Section 30]. This Section states, Nothing contained in this Act shall
prevent (a) the use of any variety registered under this Act by any person using such
variety for conducting experiments or research; and (b) the use of a variety by any
person as an initial source of a variety for the purpose of creating other varieties
provided that the authorization of the breeder of a registered variety is required where
the repeated use of such variety as a parental line is necessary for commercial
production of such other newly developed variety.

21

Farmers rights
The farmers rights of the Act define the privilege of farmers and their right to protect
varieties developed or conserved by them [Chapter VI]. Farmers can save, use, sow,
resow, exchange, share and sell farm produce of a protected variety except sale under a
commercial marketing arrangement (branded seeds) [Section 39 (1), (i) iv)]. Further,
the farmers have also been provided protection of innocent infringement when, at the
time of infringement, a farmer is not aware of the existence of breeder rights [Section 42
(1)].A farmer who is engaged in the conservation of genetic resources of landraces and
wild relatives of economic plants and their improvement through selection and
preservation, shall be entitled in the prescribed manner for recognition and reward from
the Gene Fund, provided the material so selected and preserved has been used as
donor of genes in varieties registrable under the Act.The expected performance of a
variety is to be disclosed to the farmers at the time of sale of seed / propagating
material.

A farmer or a group of farmers of an organization of farmers can claim

compensation according to the Act, if a variety or the propagating material fails to give
the expected performance under given conditions, as claimed by the breeder of the
variety.
Communities rights
The rights of the communities as defined provide for compensation for the contribution of
communities in the evolution of new varieties in quantum to be determined by the
PPVFR Authority [Section 41 (1)].
Registration of essentially derived varieties
The breeder of the essentially derived variety shall have the same rights as the plant
breeder of other new varieties, which include production, selling, marketing and
distribution, including export and import of the variety. The other eligibility criteria for
award of registration are also the same as for new variety registration under the Act
[Section 23 (1), (6)].
Compulsory license
The authority can grant compulsory license, in case of any complaints about the
availability of the seeds of any registered variety to public at a reasonable price. The
license can be granted to any person interested to take up such activities after the expiry
of a period of three years from the date of issue of certificate of registration to undertake
production, distribution and sale of the seed or other propagating material of the variety
[Section 47 (1)].

22

Benefit sharing
Sharing of benefits accruing to a breeder from a variety developed from
indigenously derived plant genetic resources has also been provided [Section 26(1)].
The authority may invite claims of benefit sharing of any variety registered under the
Act, and shall determine the quantum of such award after ascertaining the extent and
nature of the benefit claim, after providing an opportunity to be heard, to both the plant
breeder and the claimer. Benefit sharing upholds the principles of equity, rewarding the
farmer-conservers in recognition of their profound role in preserving the agrobiodiversity
and associated traditional knowledge as well as the PBR right holders. Benefit sharing
from the profits accrued from the commercial use of biodiversity is a new concept with
little or no functional models across the world.
Concerns: While the philosophy behind this concept is salutary, creation of a system for
equitable sharing of benefit among all stakeholders down to the grass root level in a
manner to stimulate the process of conservation is indeed difficult to put in place. Benefit
is to be granted on the basis of either affirmation made by the breeder that certain
varieties were used as parental lines to breed the candidate variety or, in the absence of
such affirmation, an unequivocal evidence to establish the use of specific varieties as the
parental lines, and that one or more of such parental lines are owned by an individual or
group or institution. Determination of claimant parties for benefit sharing becomes
complex when a given gene combination incorporated into a candidate variety is already
available in a few derived varieties with few of them, including the original donor variety,
are owned by different individuals or groups or institutions. Such situations are more
common in plant breeding, which makes it always not easy to pin down either a specific
gene or agronomic attribute to a singular exclusive varietal source at a given point of
time except in the case of transgenics, which are readily distinguishable for their unique
well tagged gene(s).
National Gene Fund
The National Gene Fund to be constituted under the Act shall be credited thereto:
(a) The benefit sharing from the breeder.
(b) The annual fee payable to the authority by way of royalties.
(c) By the compensation provided to the communities as defined under Section 41 (1).
(d) Contribution from any national and international organization and other sources.
The fund will be applied for disbursing shares to benefit claimers, either
individuals or organization, and for compensation to village communities. The fund will

23

also be used for supporting conservation and sustainable use of genetic resources,
including in situ and ex situ collection and for strengthening the capabilities of the
panchayat in carrying out such conservation and sustainable use [Section (45)].
Institutional structures for effective implementation
Functions of the Authority
The PPVFR authority proposed to be established under the Act has a crucial role to play
for effective implementation of the Act. The duty of the Authority is to promote by such
measures as it may think fit, the encouragement for the development of new varieties of
plants and to protect the rights of the farmers and breeders [Section 8 (1)]. In particular,
the authority is to provide measures for:
(a) The registration of extant and new plant varieties subject to such terms and
conditions and in the manner as may be prescribed.
(b) Developing characterization and documentation of varieties registered under this
Act.
(c) Documentation, indexing and cataloguing of farmers varieties.
(d) Compulsory cataloguing facilities for all varieties of plants.
(e) Ensuring that seeds of the varieties registered under this Act are available to the
farmers and providing for compulsory licensing of such varieties, if the breeder of
such varieties or any other person entitled to produce such variety under this Act
does not arrange for production and sale of seed in the manner as may be
prescribed.
(f) Collecting statistics with regard to plant varieties, including the contribution of
any person at any time in the evolution or development of any plant variety, in
India or in any other country, for compilation and publication.
(g) Ensuring the maintenance of the Register of plant varieties.
The Authority has the responsibility to provide for all the activities mentioned through
appropriate institutional structures.
Concerns: The effective implementation of the Act hinges on the DUS testing and the
Authority should ensure trust, transparency, accountability and efficiency for carrying out
such tests. Suitable farm and other infrastructure facilities for DUS testing, including
seed storage facilities need to be created. It is advisable to carry out DUS testing in at
least two locations in each major-agro climatic region relevant to the crop for at least two
successful years.

Such an evaluation procedure would create acceptance when

followed for all types of varieties among all the stakeholders.It is imperative to define

24

essential and additional characters for DUS testing (morphological, biochemical and
molecular characters), and identification of possible reference varieties for each crop
species. The scope for using UPOV guidelines on DUS testing, available for various
crops as possible templates for formulation of DUS guidelines that may suit specific
requirements in harmony with our legislation may also be considered. In order to test
the novelty, a database of the existing varieties may have to be developed with effective
linkages with other such database available internationally. It would be difficult to
ascertain uniformity criteria for composites, synthetics, multilines and multiparent
hybrids. Such consideration may have to be included in the DUS guidelines for testing
of these particular types of varieties. Existing facilities in the national system for solving
litigations can be done with strong institutional linkages.
Storage of reference samples
The storage of reference samples is an important component of this Act. It requires
enough and appropriate storage infrastructure. The Authority would, therefore, have to
create appropriate infrastructure for providing storage facilities at selected locations in
the country. Since the storage of vegetatively propagated materials requires specialized
techniques and competence, scientific personnel need to be trained accordingly and
specific centers would have to be identified and equipped for this purpose.
The fee structure
The fee for registration and other processes as well as annual fee should be reasonably
determined keeping in view the possible commercial value of the crop, the national
interests, and the desirability of generating enough resources for financial autonomy of
the Authority. Section 19 of the Act requires a breeder to submit a quantity of seeds
along with parental lines according to the standards specified by the regulations. Also,
the seeds deposited are to be conserved and regenerated if necessary for DUS testing
for maintenance. A separate fee may be assigned for conservation and regeneration,
besides a testing fee.
Claim for compensation: A farmer/farmers organization [Section 39 (2)] can claim
compensation if a variety fails to give the expected performance under given conditions.
Such a claim may have to be paid by the breeder as directed by the Authority after
giving due hearing to both the parties, namely the farmer and the breeder. Since the
variety is to be tested for DUS by the Authority at the time of registration, and if the
performance of the variety is not found to be as claimed by the breeder, the Authority
can deal with claims of failure of performance and could decide about such claims

25

independently, instead of the courts. Section 42 regarding protection to farmers for

innocent infringement is also clear as to how to define innocent infringement. Such a
clause may not stand in the court of law in view of the other laws where ignorance is not
a reason to have protection from legal obligations.
Concerns: The expected performance of a variety is promised by its breeder under
defined crop production conditions including seed and other inputs, production
management schedule, soil and whether requirements. It could be difficult to match
these defined requirements always. Moreover, a realization of an under performance
may dawn in only at the terminal stage in the case of an annual crop, wherein it could be
difficult to establish that all defined production conditions had been followed. This
provision, however, shall protect farmers from spurious seeds or planting material with
tall production claims, particularly in the case of orchard crops.
Lawfully acquired parental material
Section 81 (j) regarding information to be submitted along with an application, requires
the applicant to certify that the genetic or parental material used for breeding the variety
has been lawfully acquired.

Such declaration would be difficult in cases where the

passport information relating to the material has not been recorded.

Further, it would not always be possible for a breeder to get information relating to the
contribution of a farmer, village community, etc. since there may not be an authentic
source of such information.

Such information, if not available, may be left to the

Authority to decide, which can invite claims later through media / public notices, etc.
.

26

Chapter VI
Conclusion
Thus the PPVFR Bill engaged the attention of a range of stakeholders in its
development. It endeavors to introduce a system of Plant Breeders Rights and
operationalize Farmers Rights enabling all stakeholders including public sector
researchers, Farmers rights campaigners, private industry, inter- governmental
organizations and farmers themselves to achieve gains. With expansion in liberalized
trade and financial flows to developing countries, there several paradigms coming in
agricultural research and trading circles. The nation has to keep pace with these
developments to gain the deserved competitive advantage and therefore make new
enactments for legal process to follow. Since the Act is based on grant of rights in a fair
and equitable manner to multiple claimants, there could several obstacles in initial phase
itself. A properly structured system is necessary to avoid tragedy of anticommons21.
This paper has attempted to voice some of operational problems with an intention to
overcome them and to let the Act get enforced in its true element. The Act does not
transgress the traditional rights of farmers and recognizes the historic contribution of
generations of farmers in a biodiversity rich country like India for preserving, protecting
and enriching this biodiversity, a legacy of profound value to the modern crop
improvement efforts. However, if the enforcement is not in true senses there are fears
that some of the provisions of this Act are of more academic significance than of legal
acceptability from the point of their implementation.
It is appropriate to mention recent development when Government of India
applied on May 31,2002 to the UPOV for accession to UPOV. Several NGOs have
opposed this move indicating that this step is detrimental to interests of farmers.22
However, the Agriculture Ministry of the Government of India makes it a point to mention
that India has applied to join the 1978 UPOV Convention, not 1991 version.
21

Heller,M. and Eisenberg,R.1998 Can patents deter innovation? The anticommons in biomedical
research. Science 280 Taken from EPTD Discussion Paper No. 96 Indians plant
variety and farmers rights legislation: Potential Impact on stakeholder access to genetic
resources by Anitha Ramanna. January 2003. Environment and Production Technology
Division International Food Policy Research Institute 2033 K Street, N.W. Washington,
D.C. 20006 U.S.A. Available at: http://www.ifpri.org/divs/eptd/dp/papers/eptdp96.pdf
22
Suman Sahai,2003 .In: Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar
and Suman Sahai, eds.,, New Delhi. Akhil Chandra Associates, 2003). Pages 59 to 66

27

In this context, it is feared that a soft landing into UPOV via the 1978
Convention is only temporary in nature. Article 37(3) of the UPOV 1991 Convention
clearly states that after December 11, 1995 all countries, including developing countries,
which wish to join UPOV must accede to the 1991 Convention. Yet India has been
allowed to join the 1978 Convention. The obvious benefit to UPOV in bending their own
regulations (Article 39(3) UPOV 1991) is seen that in encouraging India, a large
developing country with major public and private plant breeding country with major public
and private plant breeding sectors, to join, other Asian countries will follow suit rather
than try and introduce their own sui generis legislation.23 Only three Asian countries
have acceded to UPOV. In order to join UPOV India will need to submit its recently
adopted law, to the UPOV Council. The Council will have to assess whether the law is
complaint with the UPOV Convention or requires amendment. The provisions relating to
breeders rights are, by and large, similar to that recognized by UPOV. What will be
interesting is the reaction of UPOV to other areas of the Act. Most observers, as well as
Indian government officials, expect UPOV to recommend changes to the law if India
wants to push through with joining the Union. It seems likely that the main area of
contention will be the issue of farmers rights.The 1991 revision of the UPOV Convention
has further restricted the scope even of exemptions to farmers that can be granted under
national law and the trend is for further restrictions. Any legislation must be within
reasonable limits and safeguarding the legitimate interest of the breeder (Article 15.2
UPOV 1991 Convention). The term legitimate interests of the breeder has been widely
interpreted to mean compensation or remuneration to the breeder if the farmer even
saves seed from his harvest, to plant the next crop.24
Against this new turn, NGOs like Gene Campaign have now filed writ petition in
form of a Public Interest Litigation (PIL) in the Delhi High Court on October 1,2002 to
block government decision to join the UPOV. It prayed to the court that decision is
unconstitutional being violative of PPVFR Act, 2001 as well as Articles 14,21,38,47 and
48-A of the Constitution of India. The Court accepted the PIL and asked Government to
file a reply. The matter is sub judice at present. The PIL is listed for argument in mid of
March 2004.25
23

Adcock,M. 2002 TheHindu, 20 July 2002

Adcock,M. 2003 In: Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar and
Suman Sahai, eds, New Delhi. Akhil Chandra Associates, 2003). Pages 67to69
25
Personal communication through email from genecamp@vsnl.com
24

28

At the outset, this paper has endeavored to explore the background for a need
for protecting plant varieties in an agrarian country like India. The genesis of the
legislation, its features along with a discussion on some of parallel treaties at
international level was put forth. The evolution of this Act through multi-fora discussions
across sections of society leading to final enactment of this and unique Act was brought
out. Analysis of the processes and mechanisms indicated the multiple ways in which all
the stakeholders, policy makers have attempted to integrate their needs into the Act.
Indeed, the Indian Act has been fructified to balance the rights of breeders with farmers.
However, analysis also brought some of major concerns which may impede its
functioning. For the successful enforcement the teething troubles at present need to be
solved in the right earnest urgently if India has to become compliant with needs of
TRIPS agreement. All concerned in the developed and developing countries are
watching with great interest and its success will certainly pave the way for a new era in
plant variety protection at the global level.

29

Bibliography
1. Agriculture and Intellectual Property Rights:
Economic, Institutional and
Implementations / Issues in biotechnology. (V. Santani ello et al eds. CAB 1980,
University Press, India, 2003)
2. Dhar,B and Chaturvedi,S Introducing plant breeders rights in India-a critical
evaluation of the proposed legislation. Journal of World Intellectual Property,
1998. 1(2), pp 245-262
3. EPTD Discussion Paper No. 96 Indians plant variety and farmers rights
legislation: Potential Impact on stakeholder access to genetic resources by
Anitha Ramanna. January 2003. Environment and Production Technology
Division International Food Policy Research Institute 2033 K Street, N.W.
Washington, D.C. 20006 U.S.A.At:
http://www.ifpri.org/divs/eptd/dp/papers/eptdp96.pdf
4. Graham Dutfield, Intellectual Property Rights, Trade and Biodiversity: The Case
of Seeds and Plant Varieties. 1999 At
www.mtnforum.org/resources/library/dutfg00a.htm
5. ICTSD and UNCTAD Intellectual Property Rights: Implications for Development
UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable
Development Policy Discussion Paper 2003
At:http://www.iprsonline.org/unctadictsd/projectoutputs.htm#policy
6. Seed Association of India, Newsletter.The Protection of Plant Varieties and
Farmers Rights Bill, 2001 Vol 15. pp 1-35.
7. Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar and
Suman Sahai, eds. New Delhi. Akhil Chandra Associates, 2003).
8. Prabhudha Ganguli, Intellectual Property Rights: Unleashing the Knowledge
Economy, Tata McGraw-Hill Publishing Co., New Delhi, 2001

30